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Sarah Shapero (Bar No. 281748)
SHAPERO LAW FIRM Electronically Filed
One Market, Spear Tower, 36m Floor by Superior Court of CA,
San Francisco, California 94105 County of Santa Clara,
Telephone: (415) 293-7995 on 2/28/2020 2:57 PM
Facsimile: (415) 358-4116 Reviewed By: J. Viramontes
Case #19CV352883
Attorney for Plaintiffs, Envelope: 4100831
HECTOR CEREZO
AIDA CEREZO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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11 HECTOR CEREZO, an individual; and AIDA Case No.: 19CV352883
CEREZO, an individual.
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PLAINTIFFS’ OPPOSITION TO
13 Plaintiff, DEFENDANT FAY SERVICING’S
DEMURRER TO PLAINTIFFS’ FIRST
14 V. AMENDED COMPLAINT
15 FAY SERVICING, LLC; BARRETT DAFFIN Date: March 12, 2020
FRAPPIER TREDER & WEISS, LLP; and Time: 9:00 am
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DOES 1-50, inclusive Dept: 19
17 Judge: Hon. Peter H. Kirwan
Defendant
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT.
INTRODUCTION
Plaintiffs brought their First Amended Complaint based on Defendant FAY’s mishandling
of the foreclosure on Plaintiffs’ property. Specifically, Defendant FAY is the servicer of the loan
that was tasked with communicating with Plaintiffs regarding the loan and referring Plaintiffs’
property at foreclosure (and following the foreclosure statutes when doing so), however
Defendant completely failed in its duties since Plaintiffs had a complete loan modification
application pending at the time of the foreclosure. For these reasons, and the reasons set forth
fully below, Plaintiffs respectfully request that Defendant’s Demurrer to Plaintiffs’ First
Amended Complaint be overruled. However, should the Court deem any of Plaintiffs’ allegations
10 insufficient, Plaintiffs respectfully request leave to amend.
11 I STATEMENT
OF FACTS
12 Plaintiffs obtained a loan secured by the property in or around November 2006. To secure
13 the loan, we executed a Deed of Trust and Promissory Note in favor of World Savings, FSB.
14 (FAC at § 8). Thereafter, the loan transferred to Wells Fargo. Plaintiffs were making payments
15 to Wells Fargo each month. (FAC at § 9).
16 In December 2018, when Plaintiffs went to make the December 2018 payment due on the
17 loan, Wells Fargo informed Plaintiffs that it could not accept the payment because the servicing
18 of the loan had transferred to Defendant Fay Servicing. (Id. at § 10). Therefore, Wells Fargo
19 informed Plaintiffs that they should contact Fay Servicing to make a payment. (Id.) This was the
20 first time that Plaintiffs had ever heard that Fay Servicing had taken over the servicing of the
21 loan, however, Plaintiffs did as instructed and contacted Fay Servicing. (Id.) Fay informed
22 Plaintiffs that it could not accept the payment on the loan! (Id.)
23 Immediately thereafter, Fay and Barrett Daffin Frappier Treder & Weiss, LLP caused a
24 Notice of Trustee’s Sale to be recorded against the property. (Id. at 11). Thereafter, on or
25 around September 21, 2019, Plaintiff faxed to Defendant FAY a loan modification application.
26 (Id. at | 12). Despite this fact, on September 23, 2019, Defendants caused a foreclosure sale to
27 take place against Plaintiff's property and a Trustee’s Deed Upon Sale has since been recorded.
28 (id.)
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
Il. LEGAL ARGUMENT
A. Legal Standard
On demurrer, the factual allegations in the complaint, together with all reasonable
inferences, must be accepted as true. (Wolfe v. State Farm Fire & Casualty Insurance Co. (1996)
46 Cal.App.4th 554, 559-560). The demurrer must be overruled if the factual allegations,
together with any matters subject to judicial notice, state a cause of action under any possible
legal theory, regardless of the causes of action set forth in the complaint itself. (Id.; also see
Brousseau v. Jarrett (1977) 73 Cal.App.3d 864). Moreover, all facts are to be construed in the
light most favorable to the plaintiff. (Perdue v. Crocker Natl. Bank (1985) 38 Cal. 3d 913, 922).
10 A plaintiff need not plead facts with specificity where the facts are within the knowledge and
11 control of the defendant and are unknown to plaintiff. (Credit
Association
Managers of Southern
12 California
v. Superior Court (1975) 51 Cal.App.3d 352, 361). Whether the plaintiff
can prove her
13 allegations, or whether defendant can demonstrate possible difficulty in making such proof is
14 irrelevant to the reviewing court. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist.
15 Agricultural Assn. (1986) 42 Cal. 3d 929, 936; citing Engineering,
Alcorn v. Anbro Inc. (1970) 2
16 Cal.3d 493, 496). If there is a reasonable possibility that a pleading defect can be cured, leave to
17 amend must be granted. (Platt v. Coldwell Banker Residential Real Estate Servs. (1990) 217 Cal
18 App. 3d 1439, 1444). As set forth fully below, Plaintiffs have sufficiently stated all of their
19 causes of action to place Defendant on notice of the claims and allegations against them. For
20 these reasons, Defendant’s demurrer must be overruled in its entirety or, alternatively, Plaintiffs
21 must be given leave to amend.
B. Plaintiffs’ Claims are Not Barred by the Doctrine of Judicial Estoppel.
22
Defendant first argues that Plaintiffs’ claims are barred because they were not disclosed in the
23
January 2019 bankruptcy. (Demurrer at p. 4-5). First, this argument could only apply to
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Plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing, as this is the
25
only claim that contains allegations that occurred prior to January 2019. Second, Plaintiffs’
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claims are not barred by the doctrine of estoppel because Plaintiffs’ bankruptcy was dismissed
27
without confirmation.
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
With regard to Defendants’ first argument, judicial estoppel is an equitable doctrine
developed by the courts to prevent litigants from “playing fast and loose” with the courts by
advancing inconsistent positions in the same, or different, cases. (Aguilar v, Lerner (2004) 32
Cal.4th 974, 986.) “The doctrine applies when (1) the same party has taken two positions; (2) the
positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was
successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as
true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a
result of ignorance, fraud, or mistake.” (/d. at 986-987 [internal citation omitted].) “Because of its
harsh consequences, the doctrine should be applied with caution and limited to egregious
10 circumstances.” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 131-132.)
11 Judicial estoppel is commonly applied following bankruptcy. Where a debtor in bankruptcy
12 seeks to reorganize and fails to disclose a potential lawsuit in the bankruptcy proceeding,
13 principles of equity may bar the debtor from bringing the lawsuit after the debtor is discharged.
14 However, the doctrine does not apply where the bankruptcy court “did not adopt or accept as the
15 truth of the [plaintiff's] position that [the debtor] did not have any legal claims” and the
16 bankruptcy case “was dismissed without confirmation of a plan of reorganization.” (Gottlieb v.
17 Kest (2006) 141 Cal.App.4th 110, 130.) Here, Plaintiffs’ bankruptcy petition did not result in a
18 confirmed plan or reorganization. (See Defendant’s RJN, Exh. 19). As there was no official
19 determination by the bankruptcy court with respect to Plaintiffs’ purported debts, the doctrine of
20 judicial estoppel does not operate as a bar to any of Plaintiffs’ claims in this action.
C. Plaintiffs Have Sufficiently Pleaded a Cause of Action for Breach of the Implied
21 Covenant of Good Faith and Fair Dealing.
22 The covenant of good faith and fair dealing was developed in the contract arena and is
23 aimed at making effective the agreement's promises." Foley v. Interactive Data Corp., 47 Cal.3d
24 654, 683 (1988). The covenant of good faith and fair dealing is implied as a supplement to the
25 express contractual covenants, to prevent a contracting party from engaging in conduct which
26 (while not technically transgressing the express covenants) frustrates the other party’s rights to
27 the benefits of the contract.” Love v. Fire Ins. Exchange, 221 Cal.App.3d 1136, 1153 (1990). The
28 covenant of good faith finds particular application in situations where one party is invested with a
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
discretionary power affecting the rights of another. Sutherland v. Barclays American Mortgage
Corp., 53 Cal. App. 4th 299, 314 (2nd App. Dist., 1997). Such power must be exercised in good
faith. Id (citing Carma Developers Inc. v. Marathon Dev. Cal , Inc. 826 P.2d 710, 726-727 (Cal.
1992)). Like other contracts, the mortgage contract contains an implied covenant of good faith
and fair dealing. See, e.g., Best Place, Inc. v. Penn Am. Ins. Co., 82 Haw. 120, 123-24, 920 P.2d
334, 337-38 (1996). "Good faith . . . requires that a party vested with contractual discretion must
exercise his discretion reasonably and may not do so arbitrarily or capriciously." Triangle Mining
Co. v. Stauffer Chem. Co., 753 F.2d 734, 738 (9th Cir. 1985).
Pursuant to Covenant | of the Deed of Trust securing the loan, Plaintiffs promised to “pay
10 on time, all principal and interest due under this Security Notes and any prepayment and late
11 charges due under the Secured Notes.” (FAC at § 17). Plaintiffs allege that Defendant breached
12 the covenant of good faith and fair dealing and interfered with Plaintiffs’ ability to perform under
13 the contract by refusing Plaintiffs timely payments under the loan. (Id.)
14 In response to this claim, Defendant argues that Plaintiffs were already in default and,
15 thus, their claim fails. However, the Deed of Trust allowed that Plaintiffs make payments under
16 the loan and they have alleged that they were doing so when Defendant began to reject their
17 payments. Therefore, there is a breach of the implied covenant of good faith and fair dealing
18 tegardless of whether Plaintiffs were current in their payments.
19 Furthermore, contrary to Defendant’s assertion, Plaintiffs do allege a specific term that
20 was breached, namely, Covenant 1 of the Deed of Trust. (FAC at § 17). And Plaintiffs’ alleged
21 how their performance was frustrated — Defendant refused their payments and refused to apply
22 them to the loan as required under Covenant 1. (FAC at §/ 17). Thus, Plaintiffs’ allegations are
23 sufficient. However, should the Court deem Plaintiffs’ allegations insufficient, Plaintiffs
24 respectfully request leave to amend to plead their performance under the loan.
D. Plaintiffs Have Sufficiently Pleaded a Cause of Action for Wrongful
25 Foreclosure.
26 Plaintiffs’ third cause of action is for wrongful foreclosure based on Defendant’s acts in
27 selling Plaintiffs’ property while Plaintiffs’ loan modification application was pending. (FAC at 4
28 28). Defendant argues that Plaintiffs’ claim fails for lack of tender, however, as set forth below,
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
this argument fails and must be overruled. However, should the Court deem Plaintiffs’ allegations
insufficient, Plaintiffs respectfully request leave to amend.
Courts have held that in order to unwind a completed foreclosure sale, one must do equity
in order to receive equity. Karlsen v Am.Sav. & Loan Ass’n, (Cal. App. 2d Dist. 1971) 15
Cal.App.3d 112, 121. The FPCI court expanded on this ruling, holding that the rationale behind
the tender requirement is that any irregularities in a sale do not damage a plaintiff if the plaintiff
could not have redeemed the property had the sale procedure been proper. RE-HAB
FRCL 01 v. E
& G Invs., (Cal. App. 2nd Dist. 1989)207 Cal. App. 3d 1018, 2011. Thus, the tender requirement
is intended to prevent a court of equity from ordering a useless act performed. Id. The Abdallah
10 Court affirmed this ruling when it held that a plaintiff must offer to tender before he can challenge
11 irregularities in a foreclosure sale and request rescission of the sale. See Abdallah
v. United Savings
12 Bank, (Cal. App. Ist Dist. 1996) 43 Cal.App.4tn 1101, 1109 (citing FPCI at 1021-1022). However,
13 there is no case law that requires a borrower to do equity when the borrower is not, in fact, seeking
14 equitable relief. The case law cited by Defendant shows that no tender is required unless the
15 borrower requests relief in equity. In the present case, as Plaintiffs are not requesting equitable
16 telief, tender is not required. Thus, Defendant’s argument fails.
17 I CONCLUSION
18 Based on the foregoing reasons, Plaintiffs respectfully request that the Court overrule
19 Defendant’s Demurrer as to all causes of action. However, should the Court deem any of
20 Plaintiffs’ allegations insufficient, Plaintiffs respectfully requests leave to amend.
21 DATED: February 27, 2020 Respectfully submitted,
22
SHAPERO LAW FIRM.
23
aro flapero
24 Satah Shabero, Esq.
Attorney for Plaintiffs,
25 HECTOR CEREZO
AIDA CEREZO
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
Preview
Sarah Shapero (Bar No. 281748) SHAPERO LAW FIRM Electronically Filed One Market, Spear Tower, 36m Floor by Superior Court of CA, San Francisco, California 94105 County of Santa Clara, Telephone: (415) 293-7995 on 2/28/2020 2:57 PM Facsimile: (415) 358-4116 Reviewed By: J. Viramontes Case #19CV352883 Attorney for Plaintiffs, Envelope: 4100831 HECTOR CEREZO AIDA CEREZO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 HECTOR CEREZO, an individual; and AIDA Case No.: 19CV352883 CEREZO, an individual. 12 PLAINTIFFS’ OPPOSITION TO 13 Plaintiff, DEFENDANT FAY SERVICING’S DEMURRER TO PLAINTIFFS’ FIRST 14 V. AMENDED COMPLAINT 15 FAY SERVICING, LLC; BARRETT DAFFIN Date: March 12, 2020 FRAPPIER TREDER & WEISS, LLP; and Time: 9:00 am 16 DOES 1-50, inclusive Dept: 19 17 Judge: Hon. Peter H. Kirwan Defendant 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT. INTRODUCTION Plaintiffs brought their First Amended Complaint based on Defendant FAY’s mishandling of the foreclosure on Plaintiffs’ property. Specifically, Defendant FAY is the servicer of the loan that was tasked with communicating with Plaintiffs regarding the loan and referring Plaintiffs’ property at foreclosure (and following the foreclosure statutes when doing so), however Defendant completely failed in its duties since Plaintiffs had a complete loan modification application pending at the time of the foreclosure. For these reasons, and the reasons set forth fully below, Plaintiffs respectfully request that Defendant’s Demurrer to Plaintiffs’ First Amended Complaint be overruled. However, should the Court deem any of Plaintiffs’ allegations 10 insufficient, Plaintiffs respectfully request leave to amend. 11 I STATEMENT OF FACTS 12 Plaintiffs obtained a loan secured by the property in or around November 2006. To secure 13 the loan, we executed a Deed of Trust and Promissory Note in favor of World Savings, FSB. 14 (FAC at § 8). Thereafter, the loan transferred to Wells Fargo. Plaintiffs were making payments 15 to Wells Fargo each month. (FAC at § 9). 16 In December 2018, when Plaintiffs went to make the December 2018 payment due on the 17 loan, Wells Fargo informed Plaintiffs that it could not accept the payment because the servicing 18 of the loan had transferred to Defendant Fay Servicing. (Id. at § 10). Therefore, Wells Fargo 19 informed Plaintiffs that they should contact Fay Servicing to make a payment. (Id.) This was the 20 first time that Plaintiffs had ever heard that Fay Servicing had taken over the servicing of the 21 loan, however, Plaintiffs did as instructed and contacted Fay Servicing. (Id.) Fay informed 22 Plaintiffs that it could not accept the payment on the loan! (Id.) 23 Immediately thereafter, Fay and Barrett Daffin Frappier Treder & Weiss, LLP caused a 24 Notice of Trustee’s Sale to be recorded against the property. (Id. at 11). Thereafter, on or 25 around September 21, 2019, Plaintiff faxed to Defendant FAY a loan modification application. 26 (Id. at | 12). Despite this fact, on September 23, 2019, Defendants caused a foreclosure sale to 27 take place against Plaintiff's property and a Trustee’s Deed Upon Sale has since been recorded. 28 (id.) 1 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT Il. LEGAL ARGUMENT A. Legal Standard On demurrer, the factual allegations in the complaint, together with all reasonable inferences, must be accepted as true. (Wolfe v. State Farm Fire & Casualty Insurance Co. (1996) 46 Cal.App.4th 554, 559-560). The demurrer must be overruled if the factual allegations, together with any matters subject to judicial notice, state a cause of action under any possible legal theory, regardless of the causes of action set forth in the complaint itself. (Id.; also see Brousseau v. Jarrett (1977) 73 Cal.App.3d 864). Moreover, all facts are to be construed in the light most favorable to the plaintiff. (Perdue v. Crocker Natl. Bank (1985) 38 Cal. 3d 913, 922). 10 A plaintiff need not plead facts with specificity where the facts are within the knowledge and 11 control of the defendant and are unknown to plaintiff. (Credit Association Managers of Southern 12 California v. Superior Court (1975) 51 Cal.App.3d 352, 361). Whether the plaintiff can prove her 13 allegations, or whether defendant can demonstrate possible difficulty in making such proof is 14 irrelevant to the reviewing court. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. 15 Agricultural Assn. (1986) 42 Cal. 3d 929, 936; citing Engineering, Alcorn v. Anbro Inc. (1970) 2 16 Cal.3d 493, 496). If there is a reasonable possibility that a pleading defect can be cured, leave to 17 amend must be granted. (Platt v. Coldwell Banker Residential Real Estate Servs. (1990) 217 Cal 18 App. 3d 1439, 1444). As set forth fully below, Plaintiffs have sufficiently stated all of their 19 causes of action to place Defendant on notice of the claims and allegations against them. For 20 these reasons, Defendant’s demurrer must be overruled in its entirety or, alternatively, Plaintiffs 21 must be given leave to amend. B. Plaintiffs’ Claims are Not Barred by the Doctrine of Judicial Estoppel. 22 Defendant first argues that Plaintiffs’ claims are barred because they were not disclosed in the 23 January 2019 bankruptcy. (Demurrer at p. 4-5). First, this argument could only apply to 24 Plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing, as this is the 25 only claim that contains allegations that occurred prior to January 2019. Second, Plaintiffs’ 26 claims are not barred by the doctrine of estoppel because Plaintiffs’ bankruptcy was dismissed 27 without confirmation. 28 2 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT With regard to Defendants’ first argument, judicial estoppel is an equitable doctrine developed by the courts to prevent litigants from “playing fast and loose” with the courts by advancing inconsistent positions in the same, or different, cases. (Aguilar v, Lerner (2004) 32 Cal.4th 974, 986.) “The doctrine applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (/d. at 986-987 [internal citation omitted].) “Because of its harsh consequences, the doctrine should be applied with caution and limited to egregious 10 circumstances.” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 131-132.) 11 Judicial estoppel is commonly applied following bankruptcy. Where a debtor in bankruptcy 12 seeks to reorganize and fails to disclose a potential lawsuit in the bankruptcy proceeding, 13 principles of equity may bar the debtor from bringing the lawsuit after the debtor is discharged. 14 However, the doctrine does not apply where the bankruptcy court “did not adopt or accept as the 15 truth of the [plaintiff's] position that [the debtor] did not have any legal claims” and the 16 bankruptcy case “was dismissed without confirmation of a plan of reorganization.” (Gottlieb v. 17 Kest (2006) 141 Cal.App.4th 110, 130.) Here, Plaintiffs’ bankruptcy petition did not result in a 18 confirmed plan or reorganization. (See Defendant’s RJN, Exh. 19). As there was no official 19 determination by the bankruptcy court with respect to Plaintiffs’ purported debts, the doctrine of 20 judicial estoppel does not operate as a bar to any of Plaintiffs’ claims in this action. C. Plaintiffs Have Sufficiently Pleaded a Cause of Action for Breach of the Implied 21 Covenant of Good Faith and Fair Dealing. 22 The covenant of good faith and fair dealing was developed in the contract arena and is 23 aimed at making effective the agreement's promises." Foley v. Interactive Data Corp., 47 Cal.3d 24 654, 683 (1988). The covenant of good faith and fair dealing is implied as a supplement to the 25 express contractual covenants, to prevent a contracting party from engaging in conduct which 26 (while not technically transgressing the express covenants) frustrates the other party’s rights to 27 the benefits of the contract.” Love v. Fire Ins. Exchange, 221 Cal.App.3d 1136, 1153 (1990). The 28 covenant of good faith finds particular application in situations where one party is invested with a 3 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT discretionary power affecting the rights of another. Sutherland v. Barclays American Mortgage Corp., 53 Cal. App. 4th 299, 314 (2nd App. Dist., 1997). Such power must be exercised in good faith. Id (citing Carma Developers Inc. v. Marathon Dev. Cal , Inc. 826 P.2d 710, 726-727 (Cal. 1992)). Like other contracts, the mortgage contract contains an implied covenant of good faith and fair dealing. See, e.g., Best Place, Inc. v. Penn Am. Ins. Co., 82 Haw. 120, 123-24, 920 P.2d 334, 337-38 (1996). "Good faith . . . requires that a party vested with contractual discretion must exercise his discretion reasonably and may not do so arbitrarily or capriciously." Triangle Mining Co. v. Stauffer Chem. Co., 753 F.2d 734, 738 (9th Cir. 1985). Pursuant to Covenant | of the Deed of Trust securing the loan, Plaintiffs promised to “pay 10 on time, all principal and interest due under this Security Notes and any prepayment and late 11 charges due under the Secured Notes.” (FAC at § 17). Plaintiffs allege that Defendant breached 12 the covenant of good faith and fair dealing and interfered with Plaintiffs’ ability to perform under 13 the contract by refusing Plaintiffs timely payments under the loan. (Id.) 14 In response to this claim, Defendant argues that Plaintiffs were already in default and, 15 thus, their claim fails. However, the Deed of Trust allowed that Plaintiffs make payments under 16 the loan and they have alleged that they were doing so when Defendant began to reject their 17 payments. Therefore, there is a breach of the implied covenant of good faith and fair dealing 18 tegardless of whether Plaintiffs were current in their payments. 19 Furthermore, contrary to Defendant’s assertion, Plaintiffs do allege a specific term that 20 was breached, namely, Covenant 1 of the Deed of Trust. (FAC at § 17). And Plaintiffs’ alleged 21 how their performance was frustrated — Defendant refused their payments and refused to apply 22 them to the loan as required under Covenant 1. (FAC at §/ 17). Thus, Plaintiffs’ allegations are 23 sufficient. However, should the Court deem Plaintiffs’ allegations insufficient, Plaintiffs 24 respectfully request leave to amend to plead their performance under the loan. D. Plaintiffs Have Sufficiently Pleaded a Cause of Action for Wrongful 25 Foreclosure. 26 Plaintiffs’ third cause of action is for wrongful foreclosure based on Defendant’s acts in 27 selling Plaintiffs’ property while Plaintiffs’ loan modification application was pending. (FAC at 4 28 28). Defendant argues that Plaintiffs’ claim fails for lack of tender, however, as set forth below, 4 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT this argument fails and must be overruled. However, should the Court deem Plaintiffs’ allegations insufficient, Plaintiffs respectfully request leave to amend. Courts have held that in order to unwind a completed foreclosure sale, one must do equity in order to receive equity. Karlsen v Am.Sav. & Loan Ass’n, (Cal. App. 2d Dist. 1971) 15 Cal.App.3d 112, 121. The FPCI court expanded on this ruling, holding that the rationale behind the tender requirement is that any irregularities in a sale do not damage a plaintiff if the plaintiff could not have redeemed the property had the sale procedure been proper. RE-HAB FRCL 01 v. E & G Invs., (Cal. App. 2nd Dist. 1989)207 Cal. App. 3d 1018, 2011. Thus, the tender requirement is intended to prevent a court of equity from ordering a useless act performed. Id. The Abdallah 10 Court affirmed this ruling when it held that a plaintiff must offer to tender before he can challenge 11 irregularities in a foreclosure sale and request rescission of the sale. See Abdallah v. United Savings 12 Bank, (Cal. App. Ist Dist. 1996) 43 Cal.App.4tn 1101, 1109 (citing FPCI at 1021-1022). However, 13 there is no case law that requires a borrower to do equity when the borrower is not, in fact, seeking 14 equitable relief. The case law cited by Defendant shows that no tender is required unless the 15 borrower requests relief in equity. In the present case, as Plaintiffs are not requesting equitable 16 telief, tender is not required. Thus, Defendant’s argument fails. 17 I CONCLUSION 18 Based on the foregoing reasons, Plaintiffs respectfully request that the Court overrule 19 Defendant’s Demurrer as to all causes of action. However, should the Court deem any of 20 Plaintiffs’ allegations insufficient, Plaintiffs respectfully requests leave to amend. 21 DATED: February 27, 2020 Respectfully submitted, 22 SHAPERO LAW FIRM. 23 aro flapero 24 Satah Shabero, Esq. Attorney for Plaintiffs, 25 HECTOR CEREZO AIDA CEREZO 26 27 28 5 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT